Rubbing Salt(er) in the Wounds

Submitted by Jessica Armfelt on Wed, 11/23/2016 - 16:53

A Little Background

Members of Albion’s Employment and Professional Disciplinary Team are routinely instructed to act across the UK on behalf of individuals, unions, professional bodies and regulators in relation to professional disciplinary and misconduct matters. Many of the cases involve professions that have at their heart strict conditions relating to honesty and integrity. Whether the accused person is a lawyer, an accountant, police officer of pharmacist the trust and confidence that the public must have in both the individual and wider bodies is rightly seen as paramount.

Therefore, when the case of Salter came along (a case concerning a police officer who was ultimately dismissed for dishonesty, who lied, not for his own benefit but for understandable, compassionate reasons) the judgment was criticised for its strict application and inflexibility, rather than its underlying principle. Salter found, in a nutshell, that where gross misconduct is found in relation to honesty and integrity, mitigation had little effect or relevance and dismissal was almost always the proper outcome.

Cited Cases:

Williams v Police Appeals Tribunal and Commission of the Police for the Metropolis (2016)

Salter v Chief Constable of Dorset (2012)

Bolton v Law Society (1994)

Perceived Distinctions

Due to a lack of space within this bulletin, the above description of Salter takes many liberties and deliberately ignores many perceived subtleties within the Judgment. As an example, in Salter there would appear to be a distinction made between ‘operational’ dishonesty and other types of dishonesty. The argument is that a police officer who was found to be operationally dishonest could not be relied upon to form part of the evidential chain in criminal investigations and prosecutions – an understandable conclusion.

Since Salter members of Albion have deployed this distinction with some success. Similarly, practitioners have successfully argued that the approach in Salter was confined to dishonesty matters. This provoked a change in approach from many of the regulatory bodies, rather than focussing on the blue whale in the room, the real disciplinary issue, the bodies often attempted to focus a panel’s attention on a minnow of dishonesty in an attempt to remove the discretion of the relevant panel.

A Stinging Sensation

The post Salter position seemed pretty settled; therefore it was with some surprise that the recent case of Williams seems to have torn up the rule book. The perceived distinction between honesty and integrity matters and other types of gross misconduct has now been erased, or at the very least, diminished.

The officer in Williams was very senior and had served with distinction. As a result of work pressures it would appear that his mental health deteriorated and this resulted in his making a number of inappropriate comments, inappropriate touching and inappropriate gestures, all falling short of sexual harassment but described as “puerile, stupid and deeply unworthy”. The disciplinary panel found his actions to be gross misconduct and dismissed the officer based, in part, on the Salter rationale.

The Argument

Again, recognising the disservice to the complexities of the case, in essence the court was asked a relatively simple question, was Salter limited to honesty and integrity, or is its application wider?

There is some irony in the case and, in the best traditions of the bar, counsel on behalf of Williams was in fact the barrister instructed by the ‘prosecution’ who secured the draconian outcome in Salter. On behalf of Williams it was argued that honesty and integrity is the most important aspect of a police officer’s conduct and this is the reason why the draconian effect of Salter could be justified and applied only to this area.

The Judgment

The court disagreed. The court in Williams undertook a review of relevant case law and came to the following conclusion;

“Public confidence in or respect for the police service may be seriously harmed by many forms of misconduct, not all of which involve dishonesty or lack of integrity... in my judgment, the importance of maintaining public confidence in and respect for the police service is constant, regardless of the nature of the gross misconduct under considerations”.

An Unexpected Consequence?

The judgment is at pains to make it clear that gross misconduct does not automatically result in a decision to dismiss, nor that mitigation cannot play a part in the assessment of sanction or outcome. Nevertheless, despite these concessions Williams does make it more likely that gross misconduct will result in dismissal by extending the strict ‘public’s trust and confidence’ approach of Salter.

What the judgment doesn’t seem to have considered is the practical effect of this decision. Previously, an accused person may take advice from their legal team that they should concede the issue of gross misconduct for non-dishonesty matters but submit powerful mitigation that previously had a good chance of persuading a panel that a sanction or outcome falling short of dismissal would be an appropriate remedy.

Following Williams it would be a brave advisor and a brave client to admit gross misconduct and to seek to rely on mitigation to avoid dismissal. Therefore cases that appear to be gross misconduct that formerly would have been resolved through admissions, will now be contested.

Why not contest the facts, seriousness and sanction, after all there is little to lose by the accused person?